Modification of Child Custody, Support & Visitation Order
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Laura Blair Butler – Divorce and Family Law Attorney
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OVERVIEW:
Virginia allows a court that has entered an order to amend or modify the order as circumstances change. Normally, a two-part test must be considered:
- Has there been a material change of circumstances since the most recent order, and
- Would the requested modification be in the best interest of the child.
The party seeking a modification has the burden of proving the changed circumstances.
When requesting an amendment, the initiating party usually must give the court and other party written notice of their intended change 30 days prior. However, taking action without proper notification and court approval could spell significant legal trouble.
Petition to Modify a Court Custody Order.
There is never a straight forward answer about a petition to modify a court order, but whenever a child is involved, the judge will always consider what’s in the best interest of the child. In most cases, the judge will consider criteria similar to the following:
- How involved in the child’s life has each parent been, especially in the care of the child.
- The age and physical, mental condition of the child.
- The age and physical, mental condition of the parents.
- The willingness of each parent to maintain a continuing relationship with the child.
- The preference of the child, especially if the court determines the child to be able to understand what’s going on.
- Any history of family abuse, especially toward the child.
When a Material Change in Circumstances Occur.
Va Code states that courts may, on petition of either of the parents, on its own, or upon petition of any probation officer or the Departments of Social Services, which petition shall set forth the reasons for the relief sought, revise and alter such decree concerning the care, custody, and maintenance of the child and make a new decree concerning the same, as the circumstances of the parents and the benefit of the child may require. The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.
No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party.
Petition to Modify a Child Support Order.
In general, at least three years must have passed since the child support order was entered, before a parent may petition the court for a change in support. A parent can request a change earlier than three years when special circumstances warrant, such as:
- A new child needs to be added to the order.
- The child is no longer eligible for support.
- One parent’s income has increased or decreased significantly, usually by 25 percent or more.
Even if three years has passed, the court will require supporting evidence for a change.
Petition to Modify a Visitation Order.
The criteria needed to petition the court to modify a visitation order is very similar to the criteria for modifying a custody order. The petitioner must show it’s in the best interest of the child for a change. When filing a petition, it’s best to have as much of the following information as possible:
- The child’s full name, date of birth, SSN, present address and addresses for the past five years.
- You name, SSN and present address.
- The name, SSN and present address of the mother, father, any other party, and any person who presently has the child.
- The current marital status of the mother and father.
- Any divorce decree or order for the child’s parents.
- Any prior custody or visitation orders for the child.
- Any paternity acknowledgements, determinations, or orders.
- Any separation agreements that deal with the child.
- Any Protective Orders about either parent.
- Any presently pending court papers about the child.
Granting a Court Ordered Modification.
Unless a parent can prove there is a material change in circumstances, and provide evidence that a change is in the best interest of the child, a court will most likely not grant the petition to modify custody, support or visitation. We can help you understand your options and assist with filing petitions.
Our fee structure: We handle cases on a flat fee or hourly basis depending on the complexity of your case. We offer initial consultations at a reduced hourly rate. At the end of the consultation, we can determine the appropriate fee structure for your case, and you can evaluate our services and decide if you want to hire us.
Your Next Step:
Contact us today – We’re ready to help.
We have three offices conveniently located in Charlottesville, Palmyra (Across from Food Lion), and Harrisonburg, Virginia.
